New Haven Suit Tossed By Trial Court

A truly unfortunate episode in the New Haven Fire Department has finally come to a close, at least as far as the trial court proceedings are concerned. A superior court judge has granted summary judgment to the city, the fire chief and several others in a lawsuit filed by an Assistant Chief.

The suit was brought in 2019 by Assistant Chief of Administration Orlando Marcano against Fire Chief John Alston, Assistant Chief of Operations Mark Vendetto, Union President Frank Ricci, and an administrative assistant, Cherlyn Poindexter. Chief Marcano alleged that the defendants were, among other things, threatening him, undermining him, and interfering with his employment which in turn led to his retirement. As explained by the court:

  • In his five count second revised complaint filed on March 1, 2021, the plaintiff alleges the following counts.
  • Counts one and four are against the defendants Vendetto and Ricci for tortious interference with the plaintiff’s employment relationship with the New Haven Fire Department.
  • Count two is against the defendant Poindexter for wrongful intrusion upon the plaintiff’s seclusion.
  • Count three was stricken by this court on June 2, 2022.
  • Count five is against the defendant Alston for negligent supervision.
  • All… defendants filed motions for summary judgment, which motions are presently before the court.

The 39-page decision details the specifics of Chief Marcano’s allegations, and the reasoning for the court’s rulings. The defendants were granted summary judgment on each of the counts – each for different reasons. Quoting from the complaint (internal quotation marks and citations removed):

  • Count five of the plaintiff’s revised complaint alleges that the defendant Alston was negligent in his supervision of Vendetto, Ricci, and Poindexter, which resulted in harm to the plaintiff.
  • Generally, a municipal employee is liable for the misperformance of ministerial acts, but has a qualified immunity in the performance of governmental acts.
  • Governmental acts are performed wholly for the direct benefit of the public and are supervisory or discretionary in nature.
  • The hallmark of a discretionary act is that it requires the exercise of judgment.
  • In contrast, [a ministerial act] refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion.
  • Municipal officials are immunized from liability for negligence arising out of their discretionary acts in part because of the danger that a more expansive exposure to liability would cramp the exercise of official discretion beyond the limits desirable in our society.
  • Discretionary act immunity reflects a value judgment that-despite injury to a member of the public-the broader interest in having government officers and employees free to exercise judgment and discretion in their official functions, unhampered by fear of second-guessing and retaliatory lawsuits, outweighs the benefits to be had from imposing liability for that injury.
  • In contrast, municipal officers are not immune from liability for negligence arising out of their ministerial acts, defined as acts to be performed in a prescribed manner without the exercise of judgment or discretion.
  • This is because society has no analogous interest in permitting municipal officers to exercise judgment in the performance of ministerial acts.
  • Accordingly, as the plaintiff does not fall within this exception to discretionary immunity, his claim against Alston fails as a matter of law, and therefore summary judgment may be granted as to count five on this basis alone.
  • [As to counts one and four] the evidence submitted by Vendetta and Ricci shows that the plaintiff has not suffered an actual loss as his own deposition testimony demonstrates the absence of a genuine issue of material fact that he voluntarily retired with the maximum amount he can earn from his pension.
  • Because the plaintiff voluntarily retired, he has not suffered an actual loss, and thus he cannot sustain a claim for tortious interference.
  • [As for Count 2] Poindexter argues that she is entitled to summary judgment on the ground that she did not intrude upon the plaintiff’s seclusion or solitude.
  • More specifically, Poindexter argues that the plaintiff’s claim of invasion of privacy fails as a matter of law, as the plaintiff has no admissible evidence to establish that Poindexter intruded on his seclusion or solitude but instead bases this claim on unsupported speculation.
  • Poindexter contends it was the plaintiffs own work phone that intercepted the conversation at issue either through the fault of the plaintiff or as a result of a technical issue with the phone system.
  • Poindexter argues that the plaintiff’s only admissible evidence to support the allegation-that she surreptitiously recorded the plaintiff’s phone conversation is that she was in possession of the recording and that the plaintiff merely speculates that Poindexter eavesdropped through illegal means.
  • Poindexter has met her burden as the party moving for summary judgment by proffering testimony in her deposition that she did not record the plaintiffs phone conversation.
  • Specifically, she testified at her deposition that the plaintiff called her work phone from his work phone, left her a voice mail message, failed to hang up his phone, and then proceeded to engage in a separate phone conversation that was captured in that same voice mail message.
  • It was therefore incumbent on the plaintiff to submit evidence to show that a genuine issue of material fact exists regarding whether any intrusion on the plaintiffs seclusion was intentional.
  • Specifically, the plaintiff needed to provide evidence, be it direct or circumstantial, that Poindexter did intrude upon his seclusion by illegally recording his phone conversation.
  • The plaintiff has not provided any evidence to demonstrate a genuine issue of material fact as to the first element of this claim.

Again, a truly unfortunate case for everyone – plaintiff and defendants – who went through the proverbial legal wringer. No word on whether Chief Marcano intends to appeal the ruling. Here is a copy of the decision.

About Curt Varone

Curt Varone has over 45 years of fire service experience and 35 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014, 4th ed. 2022) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
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